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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3610
Experience:  25 years of experience in general practice, real estate law and estate law.
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In Hawaii, if a neighbors hedges overhang is going into your

Customer Question

In Hawaii, if a neighbors hedge's overhang is going into your property, who is responsible for trimming it. I this case the hedge is going 3 or more feet over the property line. The home owner is an elderly widow and does not have the funds to pay for the trimming service required to care for the overhang. Who is responsible. Should she be the one who has to pay for the bill?
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 2 years ago.

Attorney2 :

Hello

Attorney2 :

Are you on line with me

Expert:  Attyadvisor replied 2 years ago.
This is encroachment and the neighbor is not only responsible for trimming them she is responsible for any damages you may incur as a result of the branches/
Customer: replied 2 years ago.
Clarification: What recourse does my elderly mother have? Since the neighbor was unresponsive and even sarcastic, I told my mother a would seek legal advise and see where the law stands on this issue.
Where can she get a written statement of the Hawaii law to support her. She would like to have the neighbor trim the hedge on a regular basis. At the same time would like to keep a freindly relationship with the neighbors.

By damages, do you mean she can recoop the cost of having the yardmen have to do it for her in years past?
Expert:  Attyadvisor replied 2 years ago.
"Hawaii Rule," holds that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. That rule is based upon Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981), where the court said:  "[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, [substantial] harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the ․ neighbor may cause the cut-back to be done at the tree owner's expense."  Id. at 1079.  
Expert:  Attyadvisor replied 2 years ago.
the prevailing law in Hawaii, and elsewhere, is that if a neighbor's tree overhangs into your yard, you have the right to trim the tree up to the property. Any damage incurred from non removal (as in damage to structures damages due to leaves and branches that cause injury etc.) will be the responsibility of the owner of the tree.
Customer: replied 2 years ago.

So what if it does not cause danger. We are talking about 6 foot wide, 10 to 15 feet tall Mock Orange bushes. It is just an eye soar and its branches encroach over to her side by 3 or more feet in places. My mother’s property is immaculately manicured. It is just that the shrubs are 10 feet or more in places. The greatest danger would be that if my mom were to trim it herself on the uneven footing she is sure to fall and injure herself.

She priced having someone come in and trim it but they would charge her fees that are difficult for her to afford on her fixed income. I took pictures of the overhang from a property marker showed a yardstick from the property line as proof of how much of the property gets impacted by the overhang.

This has been an ongoing problem. That she has been incurring cost for over that last 15 years ever since my father died. My father would trim back himself but at one point the neighbors son would consistently trim it. He would ask to enter the property and do the work. Now he just does within his property.

I looked at the other side of the neighbors house and spoke to the couple who is next to neighbor that owns the hedge Judging from their property line, the hedge encroaches over their property by 5 or more feet and the height of the hedge is 12 or more feet high. They are also unhappy with the circumstances but stay silent to avoid conflict with the neighbor.


What is the proper way to approach the neighbor. In essence, what would you do if it were your neighbor and you were the 80 year old widow trying to maintain her pride and joy, her yard. And the next door neighbors are unwilling but very able to do something about it?

Expert:  Attyadvisor replied 2 years ago.

With or without damage it is still an encroachment and you can trim the overhang. You can bring an action in court for an injunction (get her by court order to fix the issue) or trim it yourselves. When it is on your side you have the ability to trim or remove the amount on your side.

 

If I had already approached my neighbor nicely and have gotten nowhere, I could either trim the bushes myself or bring an encroachment action to court. If there is no potential for damage to my property I would trim my side and call it a day.

Customer: replied 2 years ago.
So in other words there is no way to require the neighbor to trim their hedge that grows over to our yard without 1) taking them to court, or 2) beg them to do something that they are legally not obligated to do.

So the law protects the inconsiderate neighbor and allows them to do nothing unless you can prove that there is a danger to the adjacent property. Meanwhile unless my mother pays for the trim we need to continue to have to live with a hedge that encroaches on the property anywhere from 6 inches to 5 feet. All this for hedges which were planted without our agreement. Wouldn't common sense say yes, the person with the overgrowth would have option of cutting it on their own but the owners of the plant (the owner being the side that has the base of the plant, growing on their side of the property should be responsible for any cost incurred as a result of maintaining that plant. Does the law not protect the neighbor affected by the owners decision to plant a shrub that can be unwieldy.
My mother has had to cut it herself. So it cost her money to do so cause she is 80 years old and a widow. With a very fixed income. Seems wrong, dont you think?

Expert:  Attyadvisor replied 2 years ago.
You bet I Agree, 100%. I wish I had a magic bullet solution for you. I can see you are frustrated and I would be too.

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